One South Florida man accused in a series of bank robbery attempts is hoping the recent revelation that the federal government is secretly keeping millions of U.S. phone records could help his defense.
Terrance Brown, 40, is one of five men on trial in federal court in Fort Lauderdale on charges they conspired to hold up armored trucks making cash deliveries to banks in Miramar and Lighthouse Point in 2010. They have all pleaded not guilty.
Another man, alleged co-conspirator Nathaniel Moss, 34, is serving life in federal prison after admitting he shot and killed Brink's truck guard Alejandro Nodarse Arencibia, 48, during the final heist on Oct. 1, 2010, outside the Bank of America branch at 7950 Miramar Parkway.
The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, as Moss, who is cooperating with the U.S. Attorney's Office, testified.
The prosecution had told defense attorneys that they were unable to obtain Brown's cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them.
Not so fast, Brown's attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after the National Security Agency surveillance program was revealed last week.
Edward Snowden, a former employee at an NSA contractor, leaked classified information about the program to a newspaper and alleged it may be an illegal government invasion of privacy.
Louis argued in court Wednesday that the government should be forced to turn over phone location records for two cellphones Brown may have used because it could prove he was not present for one of the attempted bank robberies, on July 26 on Federal Highway in Lighthouse Point.
"The president of the United States has recognized this program has been ongoing since 2006 … to gather the phone numbers [and related information] of everybody including my client in 2010," Louis said.
U.S. District Judge Robin Rosenbaum agreed to give prosecutors an extra week or two to respond fully after they said they needed more time.
"There are security procedures that must be followed," Assistant U.S. Attorney Michael Walleisa said of the special protocols the Department of Justice follows when dealing with information, usually used to identify possible terrorist activity, that may have been secretly obtained under the Foreign Intelligence Surveillance Act.
Prosecutor Michael Gilfarb told the judge that even if the information is available, it may be irrelevant depending on whether Brown carried a phone.
Brown's wife, Vesta Murat Brown, who testified for the prosecution Wednesday morning, told jurors that her husband didn't have a cellphone at the time but sometimes borrowed phones from her, other family members or friends.
Local lawyers said they anticipate there will be many more requests for this kind of information now that defense attorneys know the information may have been preserved.
"If the government is spying on our phone calls, it can't then claim in the same breath that it won't provide those calls when it helps the defense. What's good for the goose, is good for the gander," said David Oscar Markus, a defense lawyer who blogs about the federal justice system in South Florida and first wrote about the unusual request.